Gillies v. Radke

• Decision Date: 27 May 1952
• Docket Number: No. 7306,7306
• Citation: 54 N.W.2d 155,78 N.D. 974
• Parties: GILLIES et al. v. RADKE et al.
• Court: North Dakota Supreme Court

Page 155

54 N.W.2d 155

78 N.D. 974

GILLIES et al. v. RADKE et al.

No. 7306.

Supreme Court of North Dakota.

May 27, 1952.

Rehearing Denied July 12, 1952.

Syllabus by the Court.

1. On appeal in an action tried by the court without a jury an appellant who does not demand a trial de novo of the entire case may secure a review and trial de novo of certain specific questions of fact under the provisions of Section 28-2732, NDRC 1943 by causing to be included in the settled statement of the case specifications of the questions of fact that he desires the supreme court to review.

2. Where the record on appeal does not show the conduct of the parties subsequent to the entry of judgment and no motion to dismiss the appeal accompanied by a showing of acceptance of benefits is made, the respondent cannot challenge the right of the appellant to prosecute the appeal on the ground that he has accepted benefits under the judgment.

3. A willful trespasser on lands acquires no interest in crop which he sows thereon during the course of his trespass as against one lawfully entitled to possession.

4. Section 32-0603, NDRC 1943 vests in the trial court the discretion to determine in the first instance whether a temporary injunction shall be granted upon the giving of proper security; but that discretion should be exercised in the light of the rule that the purpose of a temporary injunction is to preserve the status quo and protect the rights of the plaintiff pending a determination on the merits.

5. An order continuing a temporary injunction after a hearing is an appealable order.

6. The purpose of the security required to be given upon the granting of an injunction pursuant to Section 32-0605, NDRC 1943 is to indemnify the defendants against damages resulting from injury sustained as a consequence of the injunction. The statute does not require security for punitive damages.

DePuy & Homme, Grafton, for plaintiffs and respondents.

Shaft & Benson, Grand Forks, for defendants and appellants.

MORRIS, Chief Justice.

This suit originated as an action for an injunction wherein the plaintiffs allege they are the fee simple owners of a quarter section of land in Pembina County. The original complaint sets forth:

'That plaintiffs are entitled to the possession and use of the said premises but that the defendants have wrongfully and unlawfully interfered and wrongfully and unlawfully threaten to interfere with plaintiffs' possession and use thereof and wrongfully and unlawfully threaten to deprive and are depriving the plaintiffs of their right to crop and farm said premises; that the defendants have trespassed upon said premises and continue to trespass and assert that they, the said defendants, are going to crop and farm said premises and that they will not permit the plaintiffs the use, occupancy and farming of said premises during the farming season of 1951.'

After alleging irreparable injury, the plaintiffs pray that the defendants be enjoined from interfering with the plaintiffs' possession, use, and occupancy and from interfering with the cropping and cultivation of the premises and for further just relief. This action was commenced April 28, 1951, and on the same day the plaintiffs made application to the district court for a temporary injunction supported by the affidavit of the three plaintiffs to the effect that the allegations of the complaint were true and seeking an order of the court restraining the defendants from interfering with the preparation of the premises for cropping, seeding, and cultivation thereof, pending the determination of the suit. The application was accompanied by a bond in the sum of $1,000. The judge to whom the application was made, forthwith granted a preliminary injunction restraining the defendants from in any manner interfering with the plaintiffs' possession, use, and occupancy of the premises. The court also directed that the defendants show cause on May 9, 1951, why this order or one of like purport should not be continued until final judgment, and further provided that:

'until the foregoing Order is modified let the same be in full force and effect.'

On May 1, 1951, the defendants answered by way of a general denial and set up a counterclaim in which they alleged that they had been in continuous, open, and notorious possession of the premises since April 1946 under a lease from Nellie V. Nies, the then owner, and that the lease contained an option to purchase in favor of the defendant Edward Radke, and that Edward Radke exercised his right to purchase under the lease. They also alleged that Edward Radke tendered the plaintiffs $12,000 which he is still ready and willing to pay upon execution of a conveyance of the premises; and that they gave notice to the plaintiffs of further intention to farm the premises in 1951. The defendants prayed for a dismissal of plaintiffs' cause of action and asked that they be required to receive the sum tendered in support of the defendant's exercise of the option and deed the premises to the defendant Edward Radke, and for further equitable relief. A copy of the lease under which the defendants claimed was attached to and made part of the answer.

The hearing on the order to show cause was held on May 10. The defendants appeared and by the affidavit of Stanley Radke and Herbert Radke set forth the rights which they claimed under the lease and stated that the defendants had been in open and notorious possession of the premises since April 1946 and were still in possession at the time the action was brought, and

'Plaintiffs knew or should have known of Defendant's right to farm premises for the crop year 1951 and to purchase said premises at the time of the aforesaid conveyance to them, and therefore took the said conveyance subject to those rights.'

Mr. Homme appeared for the plaintiffs and Mr. Benson for the defendants. The following colloquy was had:

'Mr. Benson: Your Honor, as will more fully appear from the affidavit of cause, I would like to point out to the Court the defendants in this action have been in continuous and open possession of the premises in dispute over a period of something like five years. At the time this action was brought they were in possession of these premises by virtue of a lease which was still in full force and effect. They have been wrongfully evicted from the premises and we are considering the plaintiffs in this action no better than trespassers under the law, but we are perfectly willing that the case be tried on its merits. We are willing to abide the decision of the case in principal when it is tried but we do state that the wrongful eviction of the defendants is resulting in substantial damages to them, and we ask that if this injunction remains in force that the bond be substantially raised, and if the bond is substantially increased, we would, as I say, be willing to abide by the trial of the case, and I presume it would be at the June term of the District Court.

'The Court: What have you to say, Mr. Homme?

'Mr. Homme: It is my understanding then, that there is no objection to the temporary injunction as it now stands, and the only motion made by the defendant is for an increase in the bond.

'The Court: Is there any objection to that?

'Mr. Homme: I can see no legal reason why the plaintiffs should object to a change in the amount of the bond as set by the Court.

'The Court: What is your idea about the amount of the bond, Mr. Benson?

'Mr. Benson: Your Honor, I think we are going to be able to prove that the defendants are being wrongfully kept off the land, and if we do, that the damages would be substantial. We feel the bond should be no less than $5000.00.

'The Court: What is your answer to that, Mr. Homme?

'Mr. Homme: We, of course, refute the statement as to the defendants' rights. They are not in issue right now anyway. I don't believe the defendants could show, at this time, that if they had a substantial and lawful claim to the quarter, that they could also show that the interference, as they claim, being made by the plaintiffs would any where near approach that in damages them. Besides that would depend upon what the nature of their claim was.'

'The Court: Can you gentlemen agree upon the amount of the bond. Mr. Benson is not satisfied with the original bond. Mr. Homme has no objection to raising the bond. That's the only dispute. Can you gentlemen agree upon the amount of the bond. We will take a recess for ten minutes and you can talk it over.

'Court reconvened pursuant to recess taken, and after an information discussion the following proceedings were had:

'The Court: Upon and pursuant to the foregoing, it is ordered that the temporary injunction heretofore issued in the above matter shall remain in full force and effect until the further order of the Court.'

The matter came on for trial on the merits on June 27, 1951, before Honorable Harold B. Nelson, who was not the judge before whom the preliminary proceedings were had. The court found that the plaintiffs were the owners of the premises, subject to the lease which gave the defendants the right of possession for the year 1951, and that they are entitled to the use, occupation, rents, and profits of the land for the farming season of 1951. The court also found:

'That the entry of the plaintiffs upon the premises described herein was made pursuant to and under the authority of an injunction from the District Court under which the defendants were restrained from the further use, occupation, rents and profits.'

The court further found that the annual rental provided for in the lease was $325.00. Judgment was entered pursuant to these findings on August 2, 1951, and provided that the plaintiffs were entitled to reimbursement for the amount of seed furnished and labor performed in planting the crops then growing upon the land.

On August 6, 1951, testimony was taken with respect to the items for which the court had determined the...